Bilkis Bano Case: With Remission Quashed, What Happens to the 11 Convicts Now?

The Supreme Court also directed the convicts in the Bilkis Bano case to surrender within two weeks.

While setting aside the Gujarat government's decision to allow premature release of 11 convicts in the 2002 Bilkis Bano case, the Supreme Court made a key observation – the "appropriate" government to take call on the remission of convicts was Maharashtra, and not Gujarat.

"... The state of Gujarat had usurped the powers of the state of Maharashtra which only could have considered the applications seeking remission," read the 251-page judgment, pronounced by the bench of Justices BV Nagarathna and Ujjal Bhuyan, on Monday, 8 January.

The convicts, who had been granted early release on 15 August 2022 after serving 14 years in the Godhra sub-jail, were also directed to surrender within two weeks.

On Wednesday, 10 January, a senior police official in Gujarat's Dahod told news agency PTI that they have 'not yet received any information about the surrender of 11 convicts as yet.'

Although a slew of lawyers The Quint spoke to said it was "unlikely" that the convicts won't surrender, what happens otherwise? What legal options do the convicts have? Does the SC judgment leave it open to the Maharashtra government to reconsider the remission plea by the convicts?

What Happens If Convicts Do Not Surrender?

Having quashed the remission order, should they (convicts) be sent back to prison or be given the benefit of liberty?

"This has been a delicate question for consideration before us," the apex court order read.

“One cannot lose sight of the fact that the said respondents were all in prison for a little over fourteen years (with liberal paroles and furloughs granted to them from time to time). They had lost their right to liberty once they were convicted and were imprisoned. But, they were released pursuant to the impugned remission orders which have been quashed by us. Consequently, the status quo ante must be restored.”

In its order, the court has indicated that the convicts can seek remission, but they need to be in prison for this.

"We say so for another reason in the event respondents are inclined to seek remission in accordance with law, they have to be in prison as they cannot seek remission when on bail or outside the jail," the order read.

Speaking to The Quint, Shobha Gupta, Bilkis Bano's lawyer, said that there was "no possibility" of the convicts not surrendering to jail authorities.

"They will have to surrender. There is no other possibility. If there is an order directing them to surrender within two weeks, and they do not follow that, contempt proceedings can be initiated, and we can go to court. But I don't think anybody will commit the mistake," she said.

Rashmi Singh, a Delhi-based lawyer, said that if the convicts do not surrender, "contempt proceedings can be initiated and non-bailable warrants can be issued."

Contempt proceedings can be initiated by courts suo motu (by the court itself), or can be moved by the petitioners in case of a violation.

"I don't understand why this question of convicts not surrendering has cropped up. When one of the petitioners in the case raised this issue, the lawyer for the convicts had filed an affidavit that they are complying with the conditions of the remission. That is reporting periodically (weekly or fortnightly) basis the local police station."

Shobha Gupta to The Quint

According to Abhir Datt, a lawyer in Delhi, while the convicts had the option of applying for a review petition against the SC verdict, it would be "far-fetched."

Here, it is important to note that a review petition has to be filed within 30 days of the judgment.

"In terms of remedies that the convicts have, they can file a review petition. But reviews are hardly entertained as it goes to the same bench of the court. It is unlikely that after having passed this judgment, the bench is going to change it."

Abhir Datt to The Quint

For Context: What Did the SC Judgment Say? 

On 3 March 2002, Bilkis Bano, who was five months pregnant at the time, was gang-raped during the post-Godhra riots. 14 members of her family, including her three-year-old daughter, were killed.

After the incident, a Central Bureau of Investigation (CBI) probe was called into the matter, and the trial of the case was transferred from Gujarat to Maharashtra.

Six years later, on 21 January 2008, a CBI Special Judge in Greater Mumbai had convicted the 11 men and sentenced them to life imprisonment.

In the judgment, the court focusing on Section 432 of the Code of Criminal Procedure (CrPc) said an application for remission can only be before the government within whose "territorial jurisdiction" the applicant was convicted (in this case, Maharashtra) and not where the offence took place (Gujarat).

"... The place of occurrence of the incident or place of imprisonment of the convict are not relevant considerations and the same have been excluded from the definition of the expression appropriate Government in clause (b) of sub-section (7) of Section 432. If the intention of the Parliament was that irrespective of the Court before which the trial and conviction had taken place, the order of remission can be considered by the Government within whose territorial jurisdiction the offence has been committed or the offender is imprisoned, the same would have been indicated by the definition."

Supreme Court in its 251-page judgment

Will Maharashtra's Remission Policy Help Release of Convicts? 

One thing that the top court order makes clear is that the Maharashtra government's remission policy would be applicable to the convicted, if they filed a plea.

While Maharashtra's first policy on remission was formulated in 1978, it was updated in 1992, 2008. In 2010, the policy was updated to include offences including under anti-terror laws.

However, as per an earlier SC judgment, the policy at the time of the conviction will be used while considering remission.

"Had the State of Maharashtra considered the applications of respondent Nos.3 to 13 (convicts) for remission, this vital opinion of the Presiding Judge of the Court which had convicted them would have carried weight in the mind of the Government of the State of Maharashtra as well as the terms of the Government’s Resolution dated 11.04.2008 which was the applicable policy for remission."

SC's 251-page order reads

As per the SC judgment, the special judge had then noted that the case of the convicts would fall under categories 2(c) and 4(d) of the 2008 resolution. 

As per the 2008 government resolution of Maharashtra's remission policy, seen by The Quint, the minimum sentence required to apply for remission for crimes against women and minors is 20 years.

But in one category (2(c)) in the policy where "the crime is committed with exceptional violence and or with brutality or death of victim due to burn and or murder with rape," the convicts would be eligible for remission only after serving a sentence of 28 years.

Category 4(d) provides for a minimum period of imprisonment of 26 years for murders committed with premeditation and with exceptional violence and brutality.

Shobha Gupta told The Quint that the convicts can only apply for remission under Maharashtra's policy after completing 28 years.

"In this case, the convicts would have to undergo a minimum imprisonment of 28 years before they can be granted remission. Till now, the convicts have served only 14 years in jail," Gupta said.